Woman's Union Missionary Soc. v. Mead

• Decision Date: 18 January 1890
• Citation: 23 N.E. 603,131 Ill. 338
• Parties: WOMAN'S UNION MISSIONARY SOC. v. MEAD et al.
• Court: Illinois Supreme Court

131 Ill. 338

23 N.E. 603

WOMAN'S UNION MISSIONARY SOC.

v.MEAD et al.¹

Supreme Court of Illinois.

Jan. 18, 1890.

Appeal from circuit court, Cook county; M. F. TULEY, Judge.

Bill to construe the will of Phebe L. Smith.Thomas S. McClelland, for missionary societies and the Home for incurables.

Pedrick & Dawson, for Benjamin Franklin Smith.

Robert A. Childs, for George O. Mead.

Lyman Trumbull and Charles H. Lawrence, for Illinois Training School for Nurses.

Williams, Holt & Wheeler, for Presbyterian Board of Relief.

Hoyne, Follansbee & O'Connor, for Board of Trustees of the Hahnemann Medical College.

Bisbee, Ahrens & Decker, for the Chicago Foundlings' Home.

WILKIN, J.

Phebe L. Smith died December 24, 1885. She left surviving, as her only heirs, James Ogden, an uncle on her mother's side, and Benjamin Franklin Smith, an uncle on her father's side. Subsequently James Ogden died, leaving a will, by which George O. Mead was made executor and sole residuary legatee. At the time of filing the bill in this cause, George O. Mead and Benjamin Franklin Smith represented, and they now represent, all the inheritable interests, if any, in the estate of Phebe L. Smith. January 24, 1884, Phebe L. Smith executed a will, making Volentine C. Turner, George O. Mead, and Alexander C. McClurg the executors thereof and trustees thereunder. This George O. Mead is the same person who is the executor of, and residuary legatee under, the will of James Ogden, deceased. The will of Phebe L. Smith was duly probated in the probate court of Cook county, Ill., and George O. Mead and Alexander C. McClurg qualified thereunder. Volentine C. Turner declined to act. Her will directs- First. That all her debts and funeral expenses be paid as soon as may be after her death. Second. A bequest to her only sister, Eliza S. Turner, of $15,000 is made. Third. A like bequest to her brother-in-law, VolentineC. Turner, husband of her said sister, Eliza S. Fourth. A bequest to her executors of $1,000 in trust, to be expended on a family monument. Fifth. A bequest of $100 each to Henry E. Ogden, William W. Ogden, Edward Ogden, and Charles M. Smith. Sixth. To her said sister, Eliza S. Turner, all personal effects in her house or possession ‘at the time of my decease,’ alabaster clock, watch, rings, jewelry, personal ornaments, and wearing apparel, and pew in the Fourth Presbyterian Church in Chicago. Seventh. A bequest to George O. Mead, a cousin, $500. Eighth. To Henry E. Ogden, $1,000; and, in case of his death ‘before my own death,’ to his brothers, Edward Ogden and Lyman Ogden, share and share alike. Ninth. A bequest to Sophia G. Gardner of $1,000. Tenth. A bequest to Laura H. Smith of $1,000. Eleventh. A bequest to Adeline S. Mead of $500. Twelfth. To Henry E. Ogden, ‘all articles of household furniture, books, works of art, and other chattels and effects which shall at my decease be in his house or in his possession.’ Thirteenth. To ‘personal friends, such articles of personal property, furniture, ornaments, etc., belonging to me, as they respectively may have in their possession at the time of my decease, excluding securities and property held by me as investments.’ The fourteenth, fifteenth, and sixteenth clauses are as follows: ‘ Fourteenth. In case of the death before me of any legatee herein named, (except Henry S. Ogden,) I give and bequeath his or her legacy to the issue of the legatee so dying, share and share alike; and in case of the death before me of any legatee herein named, (except Henry S. Ogden,) without issue, I direct that his or her legacy shall fall into my residuary estate. Fifteenth. I give, devise, and bequeath all the rest, residue, and remainder of my estate, both real and personal, to my executors, hereinafter named, and to the survivor and survivors, successors and successor, of them, in trust, to pay the income of the same to my sister, Eliza S. Turner, for and during the term of her natural life, and after her death to divide such residuary estate equally between the following corporations, associations, and societies: The Chicago Foundlings' Home; the Woman's Union Mission, (of Chicago;) the Home for Incurables, at Chicago; the Chicago Training School for Nurses; the Fund for Disabled Ministers of the Presbyterian Church; the Hahnemann Hospital, at Chicago, Illinois. Said share of my residuary estate herein devised to the Hahnemann Hospital, of Chicago, Illinois, is given upon condition that the same shall be used for the endowment of a bed in said hospital in memory of my father, Henry Smith, and in the erection in said hospital of a mural brass tablet, measuring nine and one-half inches by seventeen inches, whereon shall be inscribed in plain Roman letters the following: ‘ In memoriam Henry Smith. ‘As thy day, so shall thy strength be.’ December 25, 1866.' Sixteenth. I hereby nominate, constitute, and appoint Volentine C. Turner, of Chicago, and my cousin, George Ogden Mead, of Walton, in the state of New York, and Alexander C. McClurg of Chicago, Illinois, or such of them as may qualify, executors of this, my last will and testament, and hereby give them full power and authority to manage my estate in their discretion, and to grant, bargain, sell, and convey my real property, or any part or parts thereof, and to contract for the sale and disposition of the same, upon such terms of payment, and for such sum or sums of money, as to my said executors may seem meet and proper; and also to demise and let, for such term and upon such leases as to my said executors may seem best, all and any portion or portions of the realty belonging to my estate; and also to improve all or any parts of my estate, by grading, constructing, or building up the same, or otherwise, as to my said executors may seem best: provided, however, that they be limited in their powers to incur liabilities for account of my estate to a sum not exceeding twenty per cent. of the value of said estate; intending hereby to confer upon my said executors all such powers not herein enumerated as may be needful for the full and convenient execution of this, my last will and testament, and necessary for the easy management of my estate. And I hereby direct that in case the legacies hereinbefore named cannot, in the judgment of my said executors, be paid immediately after my decease without sacrifice to my estate, that the time for the payment of the same shall be left to the discretion of my said executors, and that they shall be the judges of the time within which the same shall be paid.' The seventeenth and last clause provides that her executors shall not be liable for the acts of each other in the settlement of her estate, but each for his own conduct. This will was executed in the city of New York, although Miss Smith at the time was, and had for many years been, a resident of the city of Chicago. She wrote the will herself, assisted, perhaps, by a lady friend, Miss Wheeler.

Prior to the death of testatrix, her sister, Mrs. Eliza S. Turner, died without issue. All debts and specific legacies having been fully paid, and the residuary estate being ready for distribution, it was ascertained by the executors that four of the residuary beneficiaries were misnamed; and they filed this bill, making the corporations and societies claiming to be intended by the testatrix by the names she used in the fifteenth clause, and also her heirs at law, parties defendant. The ‘Chicago Foundlings' Home,’ and the ‘Home for Incurables at Chicago,’ both corporations existing in the city of Chicago, appeared, and claimed the legacies willed to them by their proper names. The ‘Woman's Union Missionary Society of America for Heathen Lands,’ a corporation organized under the laws of the state of New York, and an unincorporated branch thereof, called the ‘Chicago Branch of the Woman's Union Missionary Society of America for Heathen Lands,’ claimed the legacy willed to the Woman's Union Mission, (of Chicago.)' The ‘Illinois Training School for Nurses,’ a corporation existing in the city of Chicago, organizedunder the laws of this state, claimed the legacy willed to the ‘Chicago Training School for Nurses.’ The ‘Presbyterian Board of Relief for Disabled Ministers, and the Widows and Orphans of Deceased Ministers,’ a corporation organized under the laws of the state of Pennsylvania, claimed the share left to the ‘Fund for Disabled Ministers of the Presbyterian Church;’ and the ‘Board of Trustees of the Hahnemann Medical College,’ a corporation existing under the laws of this state, in the city of Chicago, claimed the legacy willed to the Hahnemann Hospital at Chicago. Each of these corporations also claimed, by their answers, that, in case any one or more of them should fail to establish its right to the legacy claimed by it or them, such legacy or legacies should be divided equally between those whose right should be established.

The answer of Benjamin F. Smith raises the issues insisted upon by himself and George O. Mead, as heirs at law, against these several corporation claimants: Firts. Testatrix, in the residuary clause of her will, attempted to give the exact names of the residuary devisees. Second. Whether names or descriptions, they are not sufficient to identify claimants. As to the Fund for Disabled Ministers of the Presbyterian Church, and the Hahnemann Hospital, there is no latent ambiguity. Third. That the particular real estate acquired by testatrix, after making her will, through the death of her sister, Mrs. Turner, was not conveyed by said will. Fourth. That the $15,000 legacy bequeathed to Mrs. Turner did not, upon her death, fall into the residue of the estate. Fifth. That the condition on which the legacy to the Hahnemann Hospital was made-the endowment of a bed, and the erection of a mural brass tablet in memory of Henry Smith-is a measure of the amount intended by testatrix to be given to each of the residuary devisees under said fifteenth clause. Sixth....